I hate to be a spoiler in community efforts to crack down on Cincinnati's open-air drug markets. But the new anti-loitering law, enacted May 21, has serious constitutional and practical flaws.
The law creates a new crime - loitering with the intention of committing unlawful drug transactions.
It's punishable by 30 days in jail and a $250 fine. A second offense yields 90 days in jail and a $750 fine.
The law is supposed to help police disrupt illegal drug markets.
Police don't have to prove that someone engaged in a drug deal. They just have to prove that he or she participated in activities associated with trafficking - such as hanging around in high-crime areas, passing or receiving items that could contain drugs, or running at the sight of police.
The new law lays out specific conditions that must exist before a person can be charged. But it nevertheless tramples on basic constitutional protections.
For instance, "equal protection" in the 14th Amendment means that what's illegal for some is illegal for all.
The new law makes certain behaviors illegal only in "high crime" neighborhoods.
Someone passing an envelope on a Hyde Park street won't get busted, but he might in Over-the-Rhine, says Scott Greenwood, attorney for the American Civil Liberties Union.
Secondly, the law does an end-run around the Fourth Amendment's prohibitions against unreasonable searches and seizures. That amendment requires police officers to have "probable cause" - information leading them to believe a crime was committed - before they can arrest.
Cincinnati's new law doesn't require that a drug crime be committed or even that police find drugs on a suspect. Instead, police officers can merely suspect that a person intends to sell drugs because he or she:
Receives, hides or passes what looks like drugs, money or containers for them. (A container could be a purse.)
Runs or hides from police, activities that aren't by themselves illegal.
Carries items used in the drug trade, such as scales or baggies.
In addition, the officer must be aware - before making an arrest - that one of several conditions exists:
The suspect has a drug conviction in the past three years.
Police have specific tips about drug activity in the area.
A car nearby is connected to a convicted drug offender.
A court has ordered a suspect out of the area.
Even after all that, the officer must ask the suspect why he is loitering and weigh the answer before making the arrest.
That requires loiterers to prove their innocence, Greenwood says. People lose their constitutional right to remain silent when questioned by police.
To the law's credit, officers can't just arrest suspected loiterers - they must give them the chance to leave the area for five hours.
If they come back, then police can arrest, says Ernest McAdams, the city's prosecutor.
Police aren't ecstatic about the new law, because it opens them up to more allegations of racial profiling, says police union president Roger Webster.
"If John Q. Citizen walks up to a group suspected of being involved in drug dealing, he's going to be treated as if he is a drug dealer," Webster says.
"It's not based on race; it's based on criminal activity. It's an accident of enforcement."
The law makes such accidents more likely.
It's no substitute for the real needs - for more uniformed police and more undercover detectives in neighborhoods.
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